Former Toronto pathologist Dr. Charles Smith
is seen in his office at the Saskatoon City
Hospital in this file photo.

Lack of oversight, shortage of pathologists
contributed to `miscarriages of justice'

Dec 10,
2007 04:30 AM

Theresa Boyle
staff reporter

The alarm first sounded on Dr. Charles
Smith 16 years ago.

A Timmins judge had rejected Smith's
evidence in acquitting a 12-year-old girl of
manslaughter in the death of a child she had been
babysitting.

Justice Patrick Dunn had harsh words
about Smith, who had wrongly determined that the
16-month-old girl had died from shaken baby syndrome
when in fact she had suffered from an accidental head
injury. He poked holes in Smith's findings, evidence and
testimony.

This is the oldest of 20 cases in which
Smith erred that are now coming under scrutiny at the
Inquiry into Pediatric Forensic Pathology in Ontario.

Sadly, it was only in the lead-up to the
inquiry that former chief coroner Dr. Jim Young says he
read Dunn's judgment.

Had he read Dunn's judgment before,
Young says, he would have likely hired outside experts
in pediatric forensic pathology to undertake a review.

This is one of many reasons that help
explain how Smith could go on to err in 19 more cases,
12 of which resulted in criminal convictions. Former
chief coroner Jim Young has apologized for "miscarriages
of justice" that resulted.

In the Timmins case, the babysitter had
been hired in the summer of 1988 to look after the
little girl. Because of a publication ban at the
inquiry, the babysitter can be identified only as SM and
the toddler as Amber.

SM had taken the Red Cross babysitting
course, was a good student and lived with her parents
close to Amber's home.

On the afternoon of July 28, Amber woke
up from a nap babbling. SM got her from her crib and
changed her. They then walked toward a flight of five
stairs. Amber pulled away from SM and tumbled down the
stairs, according to SM.

Amber was flown to the Hospital for Sick
Children, where she died two days later.

SM's parents used all their savings to
defend their daughter, hiring experts from around the
world. Justice Dunn found their evidence more credible.

In his 75-page judgment, Dunn wrote that
Smith refused to consider the possibility that Amber had
suffered her injuries in a fall and he (Smith) was stuck
on the position that shaking had caused her death.

"There is an expression that lawyers use
that `justice must not only be done, it must be seen to
be done,'" Dunn wrote.

"It would behoove Dr. Smith in making
such an important decision as a diagnosis of shaking
that would lead to a manslaughter charge, to show he
seriously considered possibilities other than shaking,"
he continued.

Among Dunn's many concerns with Smith's
work on this case was his constantly changing definition
of the aspects of shaken baby syndrome; his wrong
assertion that no autopsy was needed to confirm the
diagnosis; and the fact that he was not up on the latest
research in the area.

Young, who now works as a special
adviser to the federal government on emergency
preparedness, told the inquiry that he didn't know of
Dunn's decision before because there is no process in
place for such judgments to be sent to the chief
coroner.

Even so, there were other missed
opportunities to find out about Dunn's ruling: It was
mentioned in a May 2001 Maclean's magazine
article; it was also referred to in a November 1999
edition of the CBC's the fifth estate; and it
was contained in a separate November 1999 complaint
about Smith, a copy of which had landed on Young's desk.
The former coroner told the inquiry he read the article
and complaint, but missed the sections referring to
Smith. And he said he was away when the CBC show aired.

In the years after Dunn's 1991 decision,
Smith's mistakes mounted.

The most egregious so far involves
William Mullins-Johnson, who was wrongly convicted in
the death of his 4-year-old niece based on evidence from
Smith. He was acquitted last month after spending 12
years in prison.

The inquiry has heard there were myriad
red flags about Smith's work over the years. As well,
there were a number of contributing factors that led to
the flawed death investigations.

One of the most surprising revelations
has been that Smith had no training in forensic
pathology despite hanging out a shingle saying he was a
pediatric forensic pathologist. He was educated only in
pediatric pathology, which would prepare him to diagnose
disease and conduct autopsies in a hospital setting.

The skill set required to do autopsies
under a coroner's warrant in criminally suspicious cases
or homicides is vastly different.

But that lack of training isn't entirely
Smith's fault. Dr. Michael Pollanen, Ontario's chief
pathologist, testified that the Royal College of
Physicians and Surgeons of Canada has only recently
designated forensic pathology as an official
sub-specialty. Canada is decades behind other
jurisdictions, including the U. S. and Britain, on this
front.

The inquiry has heard that there were
other reasons Smith continued making mistakes,
including:

Lack of oversight during 20 years in the
coroner's office.

The "guru" status he had developed in
the field.

The severe shortage of pathologists
doing this kind of work.

The "think dirty" policy in place in the
coroner's office in the mid-'90s – encourage those
working on death investigations to consider foul play.

Young had argued that the College of
Physicians and Surgeons had no jurisdiction to
investigate complaints involving Smith or any other
doctor working for it. In 2000, the Health Professions
Appeal and Review Board ruled that the college could
undertake such investigations.

When Young was asked by commission
counsel Mark Sandler about his office failing to see the
flags, the former chief coroner said other stakeholders
weren't alerting him. "We were not hearing from Crown
attorneys in large numbers. ... We were not hearing from
police officers. We weren't hearing from the Defence
Bar. ..."